Out of control

Increasingly integrated working conditions mean employees often have to work on sites with equipment that does not belong to their employer. Chris Fletcher explains how tighter control can force claimants to focus on the true basis for their case rather than taking a scattergun approach to encompass all legislation

Employers' liability insurers are familiar with handling liability issues within a statutory framework of regulations, which often provides for much tighter rules on liability than the common law. However, as public liability insurers will be only too aware, in an increasingly integrated working environment workers are often expected to work in conjunction with other organisations on sites that do not belong to their employers - and with equipment not sourced from their employers.

Mason v Satelcom and East Potential illustrates how the issue of control is key in Provision and Use of Work Equipment Regulations 1998 cases and offers some ammunition for insurers to counter the regulatory scattergun approach to both EL and PL claims to force claimants to focus on the true basis for each case.

In this case, the claimant, Mr Mason, was sent by his employer, Satelcom, to replace a computer card in a Megapac installation within a server room. The Megapac unit was owned by London Borough of Redbridge. The equipment was located, however, not on premises occupied by the Borough of Redbridge under their lease, but rather in a room nearby owned by East Homes and managed by East Potential. When Mr Mason arrived in the room, he spotted a 5ft ladder that he used to gain access to the Megapac unit 8ft above the ground. Perhaps inevitably, he overbalanced and fell to the ground, sustaining significant injury.

Trial judge's decision

Again perhaps unsurprisingly, Mr Mason recovered damages against his employer, but Satelcom sought a contribution from East Potential. While the court had to consider the potential application of several sets of statutory regulations, the focus was on Provision and Use of Work Equipment Regulations 1998 and how it applied essentially to an occupier of premises such as East Potential, rather than the employer. The regulation does, of course, apply to both employers and non-employers.

In the first instance trial, the judge found the ladder itself was reasonably sturdy and steady; Mr Mason did not ask anyone for permission to use the ladder; the keys to the server room where the ladder was found were in the possession of East Potential; and East Potential were aware of the ladder's presence in the room.

The issue of 'control' of the work equipment is key to making sense of the PL position. Just because the ladder was present in the server room did not mean East Potential had control over the claimant's decision to use it. The parties did not show East Potential had control over the way the ladder was used. Lord Justice Longmore agreed with the trial judge that East Potential had control of the ladder to the extent that it could either have removed or placed a notice of some kind upon it to prevent its use; Lord Justice Ward made similar observations.

However, the concept within the regulations of the 'extent of control' means in a case such as this it is necessary to look at the purpose for which control was to be exercised. Here, East Potential had control of the ladder not as far for the purpose of inspecting it; not for training users such as Mr Mason who was not its employees in relation to its use; nor for imparting information and instructions in relation to it; nor indeed for the purpose of ensuring that it was constructed or adapted so as to be suitable for the purpose for which Mr Mason used it.

Lord Justice Longmore commented that East Potential could not know nor reasonably anticipate that Mr Mason would use a perfectly ordinary ladder for a purpose that it was never designed for.

In resolving the appeal, Lord Justice Longmore was prepared to accept two alternatives that would both dispose of the matter in favour of East Potential; either East Potential was not in control of the ladder to any relevant extent and, therefore, it did not fall within the obligations under the equipment regulations at all; or, alternatively, the extent of its control of the ladder did not go so far as to require the company to determine the suitability of the ladder, with the result that there was no breach of regulation 4 (suitability for purpose).

Increasingly common is the tendency of those bringing claims to rely on a number of different sets of regulations in the hope that they will be successful with one of them. However, Lord Justice Longmore commented: "Where possible, the regulations should not be construed so as to overlap. Dangers of work equipment should be dealt with under the equipment regulations; dangers in construction work should be dealt with under the construction regulations; and dangers in the workplace should be dealt with under the workplace regulations."

This may, therefore, be further ammunition for employees and insurers to challenge the scattergun approach often taken by claimants in relation to workplace accident claims, particularly as the Civil Procedure Rules allow courts to take an issue-based approach on costs regardless of overall success.

Their Lordships were unanimous in allowing East Potential's appeal and in identifying control as the key limiting factor in relation to PL claims with respect to work equipment issues. The true analysis in such claims is to look at the purpose for which control over work equipment exists.

Although employers and insurers can take some comfort from this decision, PL insurers will still need to carefully consider the facts in each case. However, PL insurers now at least have some guidance as to how the regulations are to be interpreted and can take relief when struggling with the analysis in each case that the Court of Appeal will admit difficulty in trying to construe the complex meaning of the regulations.

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